Vietnamese regulations on evasion of children support obligation after divorce

1. Support obligation of parents toward children after divorce

Pursuant to Article 110 of the Law on Marriage and Family 2014 of Vietnam: “Parents who do not live with their children or live with their children but violate the support obligation have the obligation to support minor children and adult children who have no working capacity and no property to support themselves.”

On the other hand, pursuant to Clause 2 Article 82 of the Law on Marriage and Family 2014 of Vietnam, the parent who does not directly raise a child after divorce shall support this child.

Thus, Vietnamese law clearly regulates obligations of the parent who does not directly raise children after divorce. Support towards children after divorce is carried out in case the common child of the husband and wife meets the following conditions:

- Minor children: According to Clause 1 Article 21 of the Civil Code 2015 of Vietnam, minors are persons who are under 18 years of age. In case parents divorce when the child is under 18 years old, the person who does not directly raise the child is obliged to pay alimony to ensure the child's property interests until the child becomes an adult.

- Working capacity of adult children: For adult children, parents still have support obligation in the following circumstances: adult children who have no working capacity and no property to support themselves; inability to work can be due to old age, loss of working capacity, disability, loss of capacity for civil acts, etc.; however, inability to work must be accompanied by conditions of lack of property to support themselves; in fact, there are many cases where children are unable to work but still have assets to support themselves.

Support obligation of parents toward children after divorce can be agreed between husband and wife, if the parties cannot reach an agreement, they have the right to request the Court to settle the support. When the Court receives a request to resolve child support, the Court will consider the voluntarity, together with the necessary conditions of economic ability and life circumstances of the adopter to decide the child support obligation of the person who is not assigned child custody in the divorce settlement.

Although it is clearly stipulated by law, in fact, there are many cases of evasion of support obligation towards children after the decision or judgment of the Court taking effect. This harms the interests of common children, affects the life and development of children after divorce.

2. Handling of evasion of children support obligation after divorce

* Cases of children support obligation agreed by husband and wife before divorce

Pursuant to Clause 1 Article 119 of the Law on Marriage and Family 2014 of Vietnam, the supported person, his/her parent or guardian has the right in accordance with the civil procedure law to request a court to force the person who fails to voluntarily perform the support obligation to perform such obligation.

According to this provision, in case the person who does not directly raise children deliberately fails to perform the support obligation previously agreed by the parties, the other party may request the Court to force that person to perform this obligation.

The request for settlement by the Court shall be carried out as a support dispute lawsuit at the district-level People's Court where the person with the support obligation resides or works as prescribed in Clause 5 Article 28 and Point a Clause 1 Article 39 of the Code of Civil Procedure 2015 of Vietnam.

The lawsuit dossiers including:

- Lawsuit petition on support after divorce.

- A certified copy of the identity card of the parent.

- A certified copy of the parent's household registration book.

- Divorce decision/judgment.

- Proof of income of the person with the support obligation.

- Certified copy of the child's birth certificate.

Court fees: According to the Resolution No. 326/2016/UBTVQH14, the person requests for settlement by the Court is not required to pay the court fee advance, while the person who has the support obligation must pay the court fee.

* Cases of children support obligation is declared by the court in the divorce judgment

According to the provisions of law, the Court's judgment or decision on support is effective immediately after its issuance, although it may be appealed or protested. The performance of child support obligations of parents who do not directly raise children is encouraged by the State to voluntarily perform. If the person with the support obligation fully satisfies the judgment enforcement conditions but fails to voluntarily execute the judgment, he/she shall be subject to coercive judgment execution according to law provisions.

Pursuant to Clause 1 Article 30 of the current Law on Enforcement of Civil Judgements of Vietnam, within 5 years after a judgment or ruling takes legal effect, the judgment creditor and judgment debtor may request a competent civil judgment enforcement agency to issue a judgment enforcement decision.

To request judgment enforcement, the person who directly raises the child or the guardian for the child must submit a dossier requesting child support and submit it to the district judgment enforcement Sub-department or the provincial Judgment Enforcement Bureau which is headquartered in the same area as the Court issues judgments and decisions on alimony.

Dossiers for requesting children support including:

- Judgment or decision on alimony

- Application for judgment enforcement. Otherwise, it can be presented orally directly to the judgment enforcement agency to make a record.

- Documents proving that the person with the support obligation has assets for enforcement, such as: payroll; existing assets such as a house or car or money in the bank.

The person with the support obligation has a time limit for voluntary execution of a judgment within 15 days after the judgment debtor receives or is properly notified of the judgment enforcement decision (Article 45 of the current Law on Enforcement of Civil Judgements of Vietnam). Upon the expiration of the above time limit, judgment debtors with judgment execution conditions who fail to voluntarily execute judgments shall be coerced to do so. The enforcer shall make the enforcement of the support judgment by deducting it from the judgment debtor's income (such as wages, salaries, etc.).

The maximum amount deducted from salary, wages, pensions and allowances is 30% of the total monthly amount, unless otherwise agreed by the involved parties. As for other incomes, the actual income of the judgment debtor must be based on, but must ensure the minimum living conditions of that person and the children as prescribed by law.

Bao Ngoc

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